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Brazil Supreme Court quashes time frame proposal in win for Indigenous rights

image: Brazil’s Indigenous Peoples awaited for several years a resolution on the threat of the time frame thesis and celebrated a historic victory. Image courtesy of Lohana Chaves/Funai.
  • Brazil’s Supreme Court voted against the highly controversial time frame proposal, a legal challenge that would have stripped Indigenous rights and opened up traditional territories to mining and agribusiness.
  • Indigenous people and organizations hailed the decision as a victory for human rights in Brazil after years of protesting against the legal challenge.
  • Activists remain cautious, however, as ministers seek to reach a middle ground between ruralists and Indigenous people, which could affect demarcation processes and encourage economic activities on traditional land.
  • The points proposed for a possible agreement include compensating non-Indigenous people for land granted to Native communities and allowing economic activities such as agribusiness on traditional territories.

Hundreds of human rights defenders and Indigenous leaders celebrated in the streets of Brazil’s capital on Sept. 21 as the Supreme Court ruled against the highly controversial time frame thesis, known as marco temporal in Portuguese, in what activists regard as a triumph for the country’s traditional peoples.

“It is a fight that has been fought for many years and we have finally managed to overcome the issue related to the time frame thesis,” Dinamam Tuxá, a regional coordinator at the Articulation of Indigenous Peoples of Brazil (APIB), told Mongabay against the backdrop of the cheers and chants of 800 people in Brasília celebrating the decision.

The time frame thesis, if approved, would have nullified any Indigenous claims to traditional lands that they weren’t physically occupying on Oct. 5, 1988, the day of the enactment of Brazil’s Constitution. Instead, these lands would have been considered the property of private individuals or of the state, and Indigenous peoples wouldn’t have the right to claim them even if they could prove it was the home of their ancestors.

The thesis ignored the forced displacements that occurred during Brazil’s dictatorship in the years up to 1988 as well as the nomadic lifestyles of some Indigenous communities.

The time frame trial began in 2021 and was delayed several times by Brazil’s Supreme Court. Several Indigenous advocates follow it closely. Image courtesy of Antônio Cruz/Agência Brasil.
The time frame trial began in 2021 and was delayed several times by Brazil’s Supreme Court. Indigenous advocates follow it closely. Image courtesy of Antônio Cruz/Agência Brasil.

Activists hailed the decision against the time frame thesis as a win for Indigenous rights in Brazil. “The victory over the time frame symbolizes, above all, the guarantee of our lives, the survival of our culture and traditional ways of life,” the Coordination of the Brazilian Amazon Indigenous Organizations said in a statement.

“Without a doubt this is a great victory for Indigenous peoples,” Indigenous Chief Arakuã Pataxó told Mongabay. “The Constitution will remain the same. The time frame thesis would have changed it.”

Despite the celebrations, Indigenous activists remain cautious. Justice Alexandre de Moraes, who voted against the thesis, suggested compensating Indigenous people with other lands when the traditional territory cannot be granted; for example, when a city is in its place. Moraes also suggested that non-Indigenous populations should be compensated if forced to leave a land demarcated as Indigenous territory. Those possibilities of compensation, however, may make demarcations unfeasible, according to APIB. Justice Dias Toffoli, who also voted against the time frame, supported possible mineral exploration and agribusiness within Indigenous lands with prior approval from traditional peoples.

“We had a partial victory,” Tuxá said, adding that if the suggestions of Moraes and Toffoli are implemented, they will “without a shadow of a doubt, generate some setbacks for the Indigenous peoples here in Brazil.”

Haroldo Heleno, a regional coordinator at the Indigenous Missionary Council, an advocacy group affiliated with the Catholic Church, told Mongabay: “Without a doubt, it is a very significant victory for the Indigenous people. But we must remain cautious. We cannot forget that today, in the Brazilian Parliament, we have representatives who are extremely against the rights of Indigenous people. The agribusiness caucus still dominates this scenario.”

Indigenous peoples in Brazil celebrated the Supreme Court decision of killing the time frame thesis, which would reduce Indigenous rights over ancestral lands. Image courtesy of @tukuma_pataxo/APIB.

Congress on counterstrike

Supporters of the time frame thesis argue that setting a date limit for Indigenous land claims helps avoid territorial conflicts and legal uncertainty for farmers and landowners. Senator Zequinha Marinho defended the proposed approval of the time frame, adding that it would not harm Indigenous rights “given that there is already a large and spacious territory already demarcated,” he said in an official statement.

“The entire Brazilian territory may suffer from this insecurity if the time frame is not established in the country. Without a deadline for demarcation of Indigenous land, any area of the national territory can be questioned without any type of compensation,” he added.

The trial in the Supreme Court began in 2021 and was delayed several times. The postponements allowed the defenders of the time frame in the conservative-led Brazilian Congress to articulate themselves to pass a bill approving the thesis as a form of political pressure on the Supreme Court justices.

Indigenous people gather in Brasília and watch the vote on screens on Sept. 20, when the day finished one vote away from a majority against the time frame. The final decision was made Sept. 21. Image courtesy of Marcos Willian/CIMI.

In May, the thesis was approved by Brazil’s Lower House, largely backed by lawmakers linked to agribusiness who criticized Brazil’s process of recognizing Indigenous territories. Under article 231 of the Constitution, Brazil’s nearly 1.7 million Indigenous people can claim traditional land. The country has 733 Indigenous territories representing 14% of Brazil’s land mass, 0f which 496 are officially recognized by Funai, Brazil’s Indigenous affairs agency.

After its approval in the Chamber of Deputies, the time frame bill was sent to Brazil’s Senate for consideration, with no final vote yet. Indigenous representatives hope senators kill the bill after the decision of the Supreme Court, but lawmakers can still approve the law anyway — which would likely be challenged and nullified by the Supreme Court.

Nine justices voted against the time frame thesis. The proposal had only two votes in its favor, from justices André Mendonça and Nunes Marques, both nominated by former President Jair Bolsonaro. Even though all justices have already voted, the trial is not over yet. Next week, the court will define other points, such as the possibility and format of compensation to rural landowners, as proposed by Moraes and Toffoli.

“It’s a time of great relief,” Heleno said. “The Supreme Court confirmed what we believe, that the time frame is a fallacy and that it does not exist. This vote is putting an end to it. But we [Indigenous people and activists] still have a fight ahead of us.”

Sarah Brown
Sarah Brown
  Sarah Brown is a freelance journalist with a passion for the environment, sustainability and travel. Her work has been featured in the Evening Standard, Atlas Obscura and World Travel Magazine, among others. Follow her on Twitter via @BrSarahTr.
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